Bva Denied My Smc For 100% + 60% "s" Award . . .

[Teac]

The GC Op was written in 2005. The Issue of TDIU P&T ratings and higher SMC awards was decided in Bradley v.Peake, 22 Vet.App. 280 (2008).

Yes I know this! The point that I was trying to make ,(and apparently did a poor job at it) was that the General Counsel of the VA is normally some young new lawyer who is trying to make a name for him/her self. Often times they are wrong and reversed when challenged and I used Bradley v Peake as an example of the reversal.

I would be interested to know what the ruling was prior to 2005.

For the sake of discussion, if you remember, the General Counsel's opinion denying SMC S to those with TDIU was issued in 1999. Prior to that time the va apparently from all that I have read, would have allowed SMC S for those with TDIU thru a previous General Counsel's Opinion that had been resended and agreeded with the courts opinion at the time of bradley v peake.( I will look for the GC opinion of which I reference) If Bradley had not fought so hard, the later 1999 General Counsel's opinion would still be in effect.

Now the only reason I am so versed in Bradey v peake (2008) and not the other opinion of 2005 is that Bradley v peake effected me since I was awarded TDIU in Nov 1999, and in 2001 I received an increased to 60% for my lung condition. I was also granted T/P status at the same time I was granted TDIU. As a service officer I never saw a TDIU rating come back with out T/P being granted at the same time. For that matter I have never to this date ever seen a temporary TDIU rating.

We learn something new every day, even at my age.

ADDED: the General Precedence I was refering to was General Precedence 2-94 which determined there was no restriction on the nature of total ratings that may serve as a basis of entitlment to SMC.

Find this GP 2-94 here: http://www.va.gov/og...entopinions.asp

Edited March 14, 2012 by Teac

[Teac]

Getting back to the original question that is adding vrs combining the additional rating at 60%..

I have reviewed a COAV case that specifically states:

The Court explained that "Congress used the article 'a' and singular

'disability' when establishing 'a service-connected disability rated as total' as one of the requirements

for [special monthly compensation] under section 1114(s)." Id. The Court noted that, "In contrast,

Congress permits the second requirement to be met with either a single 'disability or disabilities

independently' rated at 60%." Id.The Court concluded that this distinction demonstrated

"congressional authorization for combined ratings to satisfy the second requirement but not the first."

Read the entire case here: http://www.veteransl...uie_08-2705.pdf

So If I am reading this case correctly the issue at hand has already been decided, and the answer is the additional disability is combined not added.

Edited March 13, 2012 by Teac

[Teac]

We did discuss the Buie case.

Citing Buie, "Whenever a veteran has a total disability rating, scheduler or extraschedular, based

on multiple disabilities and the veteran is subsequently awarded service connection for any additional

disability or disabilities, VA's duty to maximize benefits requires VA to assess all of the claimant's

disabilities ... to determine whether any combination of the disabilities establishes entitlement to

special monthly compensation under section 1114(s)"

Also from Buie " ... based on the plain and unambiguous language of the statute (1114(s)),

Congress's demonstrated intent not to permit combined ratings to satisfy the first requirement of the statute; [however, I would argue, that the second part of the statute (requiring an additional +60%) does not preclude simple mathematical addition beyond the 100% total and permanent rating, because the VA has a "duty to maximize benefits".

Teac, Veterans change and expand the law by FIGHTING for their claims. ~Wings

1. I must have missed the discussion on Buie....

2. As I have stated before reasonable people can disagree on the meaning of somethings...Some even say reasonable minds are still trying to decide what the meaning of is... is... of course I think thats silly......

3.reference your last comment....".Veterans change and expand the law by FIGHTING for their claims" one would never know this if you had not pointed this out ...LOL

[Philip Rogers]

We did discuss the Buie case.

Citing Buie, "Whenever a veteran has a total disability rating, scheduler or extraschedular, based

on multiple disabilities and the veteran is subsequently awarded service connection for any additional

disability or disabilities, VA's duty to maximize benefits requires VA to assess all of the claimant's

disabilities ... to determine whether any combination of the disabilities establishes entitlement to

special monthly compensation under section 1114(s)"

Wings - I've printed out Buie and will comment in a few days. On initial review, a great find! Thanks!!!!!!!!! Your research skills never cease to amaze me!!!!!!!!!!!!!

pr

Also from Buie " ... based on the plain and unambiguous language of the statute (1114(s)),

Congress's demonstrated intent not to permit combined ratings to satisfy the first requirement of the statute; [however, I would argue, that the second part of the statute (requiring an additional +60%) does not preclude simple mathematical addition beyond the 100% total and permanent rating, because the VA has a "duty to maximize benefits".

Teac, Veterans change and expand the law by FIGHTING for their claims. ~Wings

Edited March 16, 2012 by Philip Rogers

[Philip Rogers]

Spoke w/Carrie, today, at Bergmann & Moore, and aftering reading my decision, they are agreeing to represent me at the Court. Documents are being sent for my signature. Sweet!!!!!!!! Just 4 more yrs (or more) to go.

pr

Edited April 14, 2012 by Philip Rogers

[carlie]

Spoke w/Carrie, today, at Bergmann & Moore, and aftering reading my decision, they are agreeing to represent me at the Court. Documents are being sent for my signature. Sweet!!!!!!!! Just 4 more yrs to go.

pr

Sure wish interest has to be paid !